Thomas Jefferson on Politics & Government

18. Judicial Review

Who should make the final decision on interpreting the Constitution? The Supreme Court
in the case of Marbury v. Madison, which was decided during the first term of President
Thomas Jefferson, determined that IT should make the final decision for all branches of
government, and that opinion has remained in force ever since. Jefferson, however,
strongly opposed Judicial Review because he thought it violated the principle of
separation of powers. He proposed that each branch of government decide constitutional
questions for itself, only being responsible for their decisions to the voters.

"The question whether the judges are invested with exclusive authority to decide
on the constitutionality of a law has been heretofore a subject of consideration with me
in the exercise of official duties. Certainly there is not a word in the Constitution
which has given that power to them more than to the Executive or Legislative
branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True,
there must; but does that prove it is either party? The ultimate arbiter is the people of
the Union, assembled by their deputies in convention, at the call of Congress or of
two-thirds of the States. Let them decide to which they mean to give an authority claimed
by two of their organs. And it has been the peculiar wisdom and felicity of our
Constitution, to have provided this peaceable appeal, where that of other nations is at
once to force." --Thomas Jefferson to William Johnson, 1823. ME 15:451

"But, you may ask, if the two departments [i.e., federal and state] should claim
each the same subject of power, where is the common umpire to decide ultimately between
them? In cases of little importance or urgency, the prudence of both parties will keep
them aloof from the questionable ground; but if it can neither be avoided nor compromised,
a convention of the States must be called to ascribe the doubtful power to that department
which they may think best." --Thomas Jefferson to John Cartwright, 1824. ME 16:47

18.1 Judicial Despotism

"The Constitution... meant that its coordinate branches should be checks on each
other. But the opinion which gives to the judges the right to decide what laws are
constitutional and what not, not only for themselves in their own sphere of action but for
the Legislature and Executive also in their spheres, would make the Judiciary a despotic
branch." --Thomas Jefferson to Abigail Adams, 1804. ME 11:51

"To consider the judges as the ultimate arbiters of all constitutional questions
[is] a very dangerous doctrine indeed, and one which would place us under the despotism of
an oligarchy. Our judges are as honest as other men and not more so. They have with others
the same passions for party, for power, and the privilege of their corps. Their maxim is boni
judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their
power the more dangerous as they are in office for life and not responsible, as the other
functionaries are, to the elective control. The Constitution has erected no such single
tribunal, knowing that to whatever hands confided, with the corruptions of time and party,
its members would become despots. It has more wisely made all the departments co-equal and
co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820. ME
15:277

"In denying the right [the Supreme Court usurps] of exclusively explaining the
Constitution, I go further than [others] do, if I understand rightly [this] quotation from
the Federalist of an opinion that 'the judiciary is the last resort in relation to
the other departments of the government, but not in relation to the rights of the
parties to the compact under which the judiciary is derived.' If this opinion be sound,
then indeed is our Constitution a complete felo de se [act of suicide]. For
intending to establish three departments, coordinate and independent, that they might
check and balance one another, it has given, according to this opinion, to one of them
alone the right to prescribe rules for the government of the others, and to that one, too,
which is unelected by and independent of the nation. For experience has already shown that
the impeachment it has provided is not even a scare-crow... The Constitution on this
hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and
shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819. ME
15:212

"This member of the Government was at first considered as the most harmless and
helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the
Constitution, can do what open force would not dare to attempt." --Thomas Jefferson
to Edward Livingston, 1825. ME 16:114

18.2 Each Department is Independent

"My construction of the Constitution is... that each department is truly
independent of the others and has an equal right to decide for itself what is the meaning
of the Constitution in the cases submitted to its action; and especially where it is to
act ultimately and without appeal." --Thomas Jefferson to Spencer Roane, 1819. ME
15:214

"That branch which is to act ultimately and without appeal on any law, is the
rightful expositor of the validity of the law, uncontrolled by the opinions of the other
co-ordinate authorities." --Thomas Jefferson to S. H. Torrance, 1815. ME 14:304

"Nothing in the Constitution has given [the judges] a right to decide for the
Executive, more than to the Executive to decide for them. Both magistrates are equally
independent in the sphere of action assigned to them." --Thomas Jefferson to Abigail
Adams, 1804. ME ll:50

"The federal judges... cannot issue a mandamus to the President or legislature, or
to any of their officers, the Constitution controlling the common law in this
particular." --Thomas Jefferson to Spencer Roane, 1819. ME 15:214

"Each of the three departments has equally the right to decide for itself what is
its duty under the Constitution without regard to what the others may have decided for
themselves under a similar question." --Thomas Jefferson to Spencer Roane, 1819. ME
15:215

"The judges certainly have more frequent occasion to act on constitutional
questions, because the laws of meum and tuum and of criminal action, forming
the great mass of the system of law, constitute their particular department. When the
legislative or executive functionaries act unconstitutionally, they are responsible to the
people in their elective capacity. The exemption of the judges from that is quite
dangerous enough... The people themselves,... [with] their discretion [informed] by
education, [are] the true corrective of abuses of constitutional power." --Thomas
Jefferson to William C. Jarvis, 1820. ME 15:278

18.3 Contradictory Decisions

"It may be said that contradictory decisions may arise in such case and produce
inconvenience. This is possible and is a necessary failing in all human proceedings. Yet
the prudence of the public functionaries and authority of public opinion will generally
produce accommodation. Such an instance of difference occurred between the judges of
England (in the time of Lord Holt) and the House of Commons, but the prudence of those
bodies prevented inconvenience from it. So in the cases of Duane and of William Smith of
South Carolina, whose characters of citizenship stood precisely on the same ground: the
judges in a question of meum and tuum which came before them decided that
Duane was not a citizen; and in a question of membership, the House of Representatives
under the same words of the same provision adjudged William Smith to be a citizen. Yet no
inconvenience has ensued from these contradictory decisions. This is what I believe myself
to be sound." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:304

18.4 Alternative Solutions

"The... proposed [Constitution of Spain]... has one feature which I like much:
that which provides that when the three coordinate branches differ in their construction
of the Constitution, the opinion of two branches shall overrule the third. Our
Constitution has not sufficiently solved this difficulty." --Thomas Jefferson to
Valentine de Foronda, 1809. ME 12:318

"There is another opinion entertained by some men of such judgment and information
as to lessen my confidence in my own. That is, that the Legislature alone is the exclusive
expounder of the sense of the Constitution in every part of it whatever. And they allege
in its support that this branch has authority to impeach and punish a member of either of
the others acting contrary to its declaration of the sense of the Constitution. It may,
indeed, be answered that an act may still be valid although the party is punished for it,
right or wrong. However, this opinion which ascribes exclusive exposition to the
Legislature merits respect for its safety, there being in the body of the nation a control
over them which, if expressed by rejection on the subsequent exercise of their elective
franchise, enlists public opinion against their exposition and encourages a judge or
executive on a future occasion to adhere to their former opinion. Between these two
doctrines, every one has a right to choose, and I know of no third meriting any
respect." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:305

"[How] to check these unconstitutional invasions of... rights by the Federal
judiciary? Not by impeachment in the first instance, but by a strong protestation of both
houses of Congress that such and such doctrines advanced by the Supreme Court are contrary
to the Constitution; and if afterwards they relapse into the same heresies, impeach and
set the whole adrift. For what was the government divided into three branches, but that
each should watch over the others and oppose their usurpations?" --Thomas Jefferson
to Nathaniel Macon, 1821. (*) FE 10:192